Citation Nr: 1124641 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 10-16 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Kirscher Strauss, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1964 to September 1970. He died in September 2007. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which denied the appellant's claim for service connection for the cause of the Veteran's death. In June 2010 the appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During the course of this hearing, the appellant withdrew the issue of entitlement to Dependency and Indemnity Compensation under 38 U.S.C.A. § 1318. Thus, the only issue remaining on appeal is the one listed on the cover page. 38 C.F.R. § 20.204. In June 2010 the appellant submitted to the Board additional evidence for consideration in connection with the claim on appeal. A waiver of RO jurisdiction for this evidence was received in a written statement dated in June 2010 that is included in the record. The Board accepts this evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2010). FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam while on active duty; therefore, exposure to an herbicide agent is presumed. 2. Competent medical evidence of record reflects that the Veteran was diagnosed with coronary artery disease status post myocardial infarction in 1988 or 1998, quadruple coronary artery bypass graft surgery in 1997, and severe ischemic cardiomyopathy for which he was taking aspirin and Warfarin (Coumadin) on the date of his death in September 2007. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1101, 1110, 1116, 1137, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. Given the favorable decision in this case, any procedural defects in VA's duty to notify or assist the appellant in completing her claim are harmless error. Laws and Regulations To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2010). To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). To be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. 38 U.S.C.A. §§ 1101, 1112; 1113, 38 C.F.R. §§ 3.307, 3.309(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). A veteran is entitled to a presumption of service connection if he is diagnosed with ischemic heart disease, or other enumerated diseases, associated with exposure to certain herbicide agents, if he served in the Republic of Vietnam during a prescribed period. Ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim; the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The appellant claims that the Veteran's service-connected posttraumatic stress disorder (PTSD) contributed to his death. She has argued that his PTSD or medication taken for it caused or aggravated his hypertension and heart disease. She provided Internet research, a medical opinion from a private family practice physician, and statements and oral testimony in support of her claim. The Board does not specifically address her contentions because the claim is being granted based on the Veteran's presumed exposure to herbicides in the Republic of Vietnam and competent medical evidence of diagnosed ischemic cardiomyopathy for which he was treated prior to and on the date of his death. The certificate of death listed the cause of death as hypertensive and arteriosclerotic cardiovascular disease. The Veteran died in September 2007. The Veteran's DD Form 214 (Separation from Service) documented that he served in the Republic of Vietnam from October 1966 to March 1968. Awards included the Combat Infantryman Badge and Bronze Star Medal with V Device, among others. VA treatment records associated with the claims folder reflect that the Veteran was diagnosed with coronary artery disease status post myocardial infarction in 1988 or February 1998 (both dates are listed), quadruple coronary artery bypass graft in 1997, and ischemic cardiomyopathy. Prescribed medications included Coumadin (Warfarin). Terminal VA treatment records from the date of the Veteran's death in September 2007 include a diagnosis of severe ischemic cardiomyopathy and show that active, prescribed medications included aspirin and Warfarin. The Board finds that service connection for the cause of the Veteran's death is warranted based on presumed exposure to herbicides in the Republic of Vietnam and a confirmed diagnosis of ischemic cardiomyopathy for which the Veteran was taking prescribed medications prior to and on the date of his death. The Board notes that the certificate of death appears to list the cause of death as "arteriosclerotic" cardiovascular disease. However, terminal treatment records clearly show that he was diagnosed with ischemic heart disease, which includes coronary artery disease, ischemic cardiomyopathy, and old myocardial infarction. Therefore, service connection for the cause of the Veteran's death is allowed. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs